JUDGMENT
J.G. Chitre, J.
1. The appellants are assailing the correctness, propriety and legality of the order passed by the Additional Sessions Judge for Greater Bombay in Sessions Case No. 539 of 1993 wherein appellant Navin Purshottam Shetty has been sentenced to undergo RI for 4 years and to pay a fine of Rs. 500/-, in default to undergo 51 for 7 days for the offence punishable under Section 392 of IPC. He has been sentenced to undergo RI for 7 years for the offence punishable under the provisions of Section 397 of IPC. He has been sentenced to undergo RI for 2 years and to pay a fine of Rs. 200/- in default S.I. fr 3 days. Appellant Bhaskar Virappa Kanchan has been sentenced to undergo RI for 4 years and to pay a fine of Rs. 500/-, in default to undergo SI for 7 days for the offence punishable under Section 392 of IPC. He has been sentenced to undergo RI for 2 years and to pay a fine of Rs. 200/- in default S.I. for 3 days for the offence punishable under Section 452 of IPC.
2. These two appellants were tried before the trial Court mentioned above along with other three co-accused, namely, Ejaj Badshah Shaikh, Rashid @ Mamit Abdul Majid Ansari and Sayyed. Their appeals are not before this Court today for hearing.
3. The prosecution case in brief is that PW-1 Ghevarchand Sonaji Jain runs a courier business under the style “Maruti Express Service Pvt. Ltd.”. Rajendra Ganpat Lalji Sharma was at the relevant time in his employment as servant and was working in his said shop which was the subject matter of the said decoity. On 8.9.1991 at about 6.15 p.m. PW-1 Ghevarchand Sonaji Jain was in his cabin of the shop and his employees, namely Rajendra Sharma, Manojkumar Mehta were working in his shop. As per the prosecution case, at that time one person entered in shop and dragged PW-2 Manojkumar Mehta, PW Rajendra Sharma at the point of weapons and by pointing a chopper towards PW-1 Ghevarchand Sonaji Jain, took away cash belonging to him to the tune of Rs. 55,000/-. At that time some persons were standing outside the cabin. After looting the said cash from him, those persons started to run away who were chased by some of the prosecution witnesses and the members of the public. They could not be caught. PW-1 Ghevarchand Sonaji Jain lodged his FIR in L.T. Marg Police Station which was recorded by PI Naik PW-4 and crime was registered against three unknown persons under C.R. No. 199 of 1991. Accused No. 1 Ejaj was arrested on 16.10.1992. Accused Rashid was arrested on 20.10.1992. The appellant Navin Purushottam Shetty was arrested on 23.10.1992 and appellant Bhaskar Kanchan was also arrested near about the same day. Appellant Navin Shetty was put to identification parade on 24.10.1992 and as per prosecution case was identified by PW-1 Ghevarchand Sonaji Jain, by PW Manojkumar Mehta and PW Rajendra Sharma. Appellant Navin Shetty has been identified by those witnesses as the person who took away Rs. 55000/- from PW-1 Ghevarchand Sonaji Jain by showing him the chopper. They identified Bhaskar Kanchan as the person who was with him and associate of Shetty at that time. The learned trial Judge after appreciating the evidence came to the conclusion that the prosecution had proved the guilt of these two appellants in respect of the offences referred to above. In view of that he passed the order of conviction and sentence which is the subject matter of challenge in these appeals.
4. Shri Patne, counsel appearing for the appellants, submitted that the prosecution witnesses PW-1 Ghevarchand Sonaji Jain, Rajendra Sharma and Manojkumar Mehta had no sufficient opportunity to observe the faces and features of the decoits and, therefore, the identification made by them after four months, was not believable. He also submitted that those witnesses had seen these appellants in earlier parade also and this point was ignored by the learned trial Judge. He submitted that the identification parade was held in police station and therefore the learned trial Judge should have acquitted the appellants and as they have been convicted, the said order of conviction and sentence needs to be set aside by allowing these appeals.
5. Shri Saste, the Additional Public Prosecutor, supported the order of conviction and sentence by submitting that the identification parade has been held legally and there is nothing on record to show that the police had access to the spot of identification parade and the identification parade, though it was held in the police station premises. He submitted that the identifying witnesses had sufficient opportunity and time to have the perfect impressions of the appellants in their minds and brains and, therefore, the identification is proper and believable and the trial Court has done the same. He justified the order of conviction and sentence and submitted that these appeals be dismissed.
6. This Court dismisses the submissions advanced by Shri Patne in both the appeals for the reasons stated below.
7. Though this Court has often deprecated the action of investigating agencies to hold identification parades in police stations, the Government of Maharashtra has to taken into consideration the possibility of spoiling the case of prosecution by holding identification parades in police stations. Time and again this Court has pointed out to State of Maharashtra that they should make arrangements of special halls for the purposes of holding identification parades by the investigating agencies in different types of crimes but Sate of Maharashtra has to do significant work in this context and the action taken by it would help the cause of justice if taken earlier. It would give solace to members of public and the investigating agencies also.
8. The identification parades have been held in the past in the police stations. In this case also, the identification parade has been held in the police station premsies but fortunately in a premises which has been totally separate from the police offices of the concerned police station. There is ample material on record to show that the police machinery working in the said police station had no access whatsoever with the spot of the identification parade and there is nothing on record to show that the identifying witnesses had the opportunity of seeing the suspects before the identification parade and there is nothing on record to show that the suspects were show to them prior to the identification parade.
9. Shri Patne submitted that the memoranda of identification parades held immediately prior to 24.10.1992 were produced by the concerned accused when they were examined in view of Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code for convenience). That may be so, but, Special Executive Magistrate Sharad Vichare, PW-1 Ghevarchand Sonaji Jain, PW Manojkumar Mehta, PW Rajendra Sharma were not confronted with those documents. The appellants could have moved the application for recalling those witnesses and confronted them with the said documents in view of provisions of Sections 145 and 155 of the Indian Evidence Act, 1872 (hereinafter referred to as the Indian Evidence Act for convenience). For the purposes of impeaching the credit of a witness and dislodging his evidence given in examination-in-chief, it is the duty of the defence to confront such witnesses by showing their previous statements reduced into writing. Such witnesses can be confronted by the documents or the memoranda of the actions taken by them at particular time in particular action. Say, memoranda of identification parades, memoranda of information given and recorded in view of Section 27 of the Indian Evidence Act and the discovery of fact in pursuance of that seizure panchnamas, arrest panchnamas and other similar documents. They have to take appropriate action in view of Sections 145 and 155 of the Indian Evidence Act. If the contradiction is to be brought on record, it is to be brought on record in view of the observations made by the Supreme Court in the matter of Tahasildar Singh and Anr. v. State of U.P. . But in this case no such legal actions have been taken by the defence and, therefore, the defence cannot exonerate itself from its lawful obligation by tendering those documents in the examination under Section 313 of the accused. It can be considered but when the witnesses have denied the suggestions made to them on such points, the statements made by such witnesses in their examinations-in-chief cannot be dislodged by mere production of such documents. As Supreme Court has observed in number of cases and as the law stands, every witness has to be given opportunity of explaining the situation which is likely to be used against his statement in evidence or against him by the adversely, in the argument at the final stage or the trial of the proceeding. A witness cannot be caught in a surprised way or cannot be taken attack in surprised and astonishing way. A document cannot be used against him without affording him an opportunity of putting his say in respect of that document. A statement of a witness cannot be used against him unless he has been given the opportunity of putting his say on it or explaining the situation in his favour. None can be condemned as a liar without affording him the sufficient opportunity of explaining himself. In this case, defence has failed in doing it. It is true that defence – accused is not saddled with the burden of proving the fact in defence to that extent like prosecution, but it cannot be permitted to use documents to its advantage by flouting provisions of evidence Act. The defence, the accused has to fulfil legal obligations indicated by law and legal jurisprudence and rule of natural justice also. No party at litigation can be permitted to utilise the circumstances in its favour of deviating from the provisions of law or by giving go by to legal provisions. There would be difference in burden of proof but way of proving the fact would be the same, legal one.
10. In the present case, the points on which Shri Patne made the submissions were not proved properly in the course of the trial as indicated by legal provisions mentioned above and principles of criminal jurisprudence quoted above was not followed. Therefore, Shri Patne cannot be permitted to take the advantage of the situation which has not been brought on record legally, for action. Court would be discarding everything which is not consistent with the law. Irrelevant matters would not be considered in judicial adjudication. Therefore, submissions advanced by Shri Patne will have to be dismissed.
11. PW-1 Ghevarchand Sonaji Jain and sufficient time to identify appellants Navin Purushottam Shetty and Bhaskar Virappa Kanchan who were in close proximity of PW-1 Ghevarchand Sonaji Jain when at the point of the said chopper a sum of Rs. 55,000/- was snatched out from his possession. There might have been some conversation between them. PW-1 Ghevarchand Sonaji Jain had sufficient time to observe the face and features of Navin Purushottam Shetty because he must have seen Navin Purushottam Shetty holding the said chopper. Otherwise he would not have parted the said big sum. Same is the case in respect of Bhaskar Virappa Kanchan because Bhaskar Virappa Kanchan was standing in close proximity of PW-1 Ghevarchand Sonaji Jain and Navin Purushottam Shetty and was acting in furtherance of common intention of all culprits. He was acting in previous concert with Navin Shetty and was having oneness of the mind in looting the said amount of Rs. 55,000/-. It is pertinent to note that PW Rajendra Sharma and PW Manojkumar Mehta were at that time at that spot and in close proximity of PW-1 Ghevarchand Sonaji Jain. As natural course of human behaviour, they must have been observing at that time their master PW-1 Ghevarchand Sonaji Jain as well as both the appellants Navin Shetty and Bhaskar Kanchan. Sufficient light was available for visibility and those witnesses were having sufficient time to see the faces and features of those accused.
12. In this context, Shri Patne submitted that there has been variance in the description of the culprits mentioned in the FIR. Again PW-1 Ghevarchand Sonaji Jain was not confronted with his statement in writing which was tendered as corroborative evidence by the prosecution in the nature of FIR. What prevented the defence to do that? PW-1 Ghevarchand Sonaji Jain could have been cross examined on that point by confronting him with F.I.R. (SIC) statement recorded during investigation. But that was not done. Therefore, the submission which has been made by Shri Patne cannot be accepted.
13. The identification parade evidence tendered through the mouth of Special Executive Magistrate Sharad Vichare is standing to the test of truth. He has taken maximum care in seeing that the identification witnesses could not see the culprits before the identification parade. He has taken sufficient care for avoiding any possibility of interference from the police personnel. The evidence of the panch witnesses is also above board in this context.
14. The evidence of the investigating officer is corroborating the evidence of PW Ghevarchand Sonaji Jain, PW Manojkumar Mehta, PW Rajendra Sharma and Sharad Vichare.
15. The trial Judge has discussed the evidence at length and has appreciated it by scanning it. The approach adopted by him is perfectly legal and this Court does not find any infirmity in it. The conclusions recorded by him are borne out by evidence on record.
16. Thus, the order of conviction and sentence which has been challenged by these appeals will have to be confirmed by dismissing these appeals except a slight modification. There cannot be a conviction and sentence for the offences under Section 397 simplicitor. The learned trial Judge has committed a mistake in passing such order of conviction and sentence. That has to be set aside. Other portion of the order passed by him in the said judgment convicting and sentencing both the appellants will have to be maintained. Thus, both the appeals stand dismissed. No interference in the order in respect of the disposal of the property.